Court rejects appeal of freelancer who taped violent rally

2006-09-11 15:05:00 PDT SAN FRANCISCO -- A federal appeals court has rejected an appeal by a freelance journalist and activist who was jailed for a month for refusing to give a grand jury outtakes of footage he shot at a violent San Francisco protest in July 2005.

The unanimous ruling by the three-judge panel of the Ninth U.S. Circuit Court of Appeals means 24-year-old Josh Wolf of San Francisco could return to federal prison if he continues to refuse to comply with a subpoena ordering him to hand over the videotape.

Judges Diarmuid O'Scannlain, Susan Graber and Richard Clifton concluded that Wolf, a 24-year-old San Francisco resident, had no grounds for resisting the subpoena. The subpoena was issued by a federal grand jury investigating the alleged attempted burning of a San Francisco police car at the anarchist-led rally July 8, 2005, against an economic summit that was taking place at the time in Scotland.

A police officer was hit on the head during the protest and suffered a fractured skull. The grand jury is investigating the alleged attempted burning of a police car, which prosecutors say would be a federal crime because the Police Department receives money from Washington.

Neither incident was shown in footage that local television stations purchased from Wolf. He refused to surrender his outtakes, claiming a journalist's right to withhold unpublished material as well as confidential sources. Those rights are protected by California's shield law, but that law does not apply in federal court.

The federal appeals court cited "the long-established obligation of a reporter to comply with grand jury subpoenas" in ruling against Wolf on Friday.

The ruling said U.S. District Judge William Alsup, who held Wolf in contempt Aug. 1, was correct not to seek a balance between the importance of the grand jury investigation and Wolf's rights as a journalist. However, the panel noted that such a balancing test would favor the government.

"He simply videotaped what people did in a public place," the judges wrote. "Wolf does not claim that he filmed anything confidential nor that he promised anyone anonymity or confidentiality. Therefore, this case does not raise the usual concerns in cases involving journalists."

Wolf's attorneys are reviewing their options, which include seeking a review by the full appeals court or taking the case to the U.S. Supreme Court. Wolf and his supporters have argued, among other things, that the subpoena would effectively force him to act as a government investigator.

"Obviously, it's disappointing," Wolf said Monday. He said he had offered to give Alsup a private screening of his footage, which he said does not depict the alleged attempt to burn a police car.

Wolf said that if he turned over the footage to prosecutors, it would "have a chilling effect on myself, gaining access and trust with contacts, and have chilling effect on journalists in general, knowing their information can be subpoenaed at any moment."

The Ninth Circuit granted bail to Wolf last month while his appeal was considered. His advocates, who include national journalists organizations, hoped the order was a sign that the court was prepared to reconsider the question of reporters' right to protect confidential sources and unpublished material from compelled disclosure in federal court.

Now, though, Wolf faces the prospect of being sent back to federal prison until the grand jury's term expires in July. Wolf was the first California journalist to be jailed for withholding information since 2000.

Even as it noted that California's shield law did not apply in federal court, the appeals panel suggested that the state law would not protect Wolf because he wasn't a "publisher, editor, reporter or other person connected with or employed upon a newspaper, magazine or other periodical publication, or by a press association or wire service."

"What is a journalist?" Wolf said Monday. "There's no journalist license. I have a body of work that is both self-published and in newspapers, and videos that have been picked up by other organizations. The easiest way I can see of judging a journalist is whether his peers judge him to be a journalist."